VICTORIANA SANTA ANA ET AL., PLAINTIFFS AND APPELLEES, VS. BERNABE SANTA ANA ET AL., DEFENDANTS AND APPELLANTS.

The action is one to set aside a conveyance made by the defendant and for a
declaration that the real estate described in the conveyance is the property of
the plaintiffs.

The evidence alleged to. have been newly discovered consists of a document
dated about the year 1870, which purports to be a partition of real estate made
by ancestors of the plaintiffs among their children.

The record before us upon which the motion for a new trial is based
demonstrates that a motion to the same effect and for the same purpose was made
in the Court of First Instance after the termination of the trial and the entry
of judgment and was denied by that court upon the ground that the evidence
discovered was not shown to have been newly discovered within the meaning of the
law, and that, even though admitted in evidence, it would not have had material
effect on the judgment of the court.

To this denial of the motion the defendants took exception and appealed from
the judgment of the court upon the merits and from its order denying a new
trial. Therefore, whether or not the defendants are entitled to a new trial is
before us on appeal to be resolved along with the other questions presented
thereon. This being so, it is clear that we ought not to entertain a motion made
directly to us which would anticipate the resolution of the same question on
appeal.

While the motion for a new trial upon the ground of newly discovered
evidence, as upon any other ground, is not the subject of a separate appeal, if
excepted to, it comes up with the appeal from the judgment upon the merits under
section 143 of the Code of Civil Procedure, which provides that “upon the
rendition of final judgment disposing of the action either party shall have the
right to perfect a bill of exceptions for a review by the Supreme Court of all
rulings, orders, and judgments made in the action, to which the party has duly
excepted at the time of making such ruling, order, or judgment.”

The motion is, therefore, denied.

Arellano, C. J., Torres, Johnson, Carson, and Araullo, JJ.,
concur.